The Family Lawyer

Sunday, 13 November 2016

In the recent case of Sahadi
and Savva the mother and father were involved in family law proceedings
against each other and they were also both accused of serious criminal charges.

The trial judge had granted an application by the
Commissioner of Police to release a report prepared in family law proceedings
to the Police and others. The mother
appealed that decision.

On appeal the Full Court noted:

·That the trial judge had found that the Police
had a legitimate forensic purpose in seeking leave to use the report and His
Honour had weighted the child's interests against the public interest in
ensuring that justice is done in the criminal proceedings;

·That the very purpose of a report is for the
benefit of the Court and the expert is obligated to declare that no matters of
significance have been withheld from the Court – therefore it is impossible to
see how there is some confidentiality between the report writer and the
parties;

·That the question of the admissibility of the
report – including consideration of disputed matters of fact – is a matter for
the Court determining the criminal proceedings.

·That the trial Judge had accepted the evidence
of the Commissioner – unchallenged by the mother – that it is only after the
collection and evaluation of evidence that decisions can be made as to the use
of material and as such the whole of the report was relevant.

Monday, 22 August 2016

In the recent case of Masoud
and Masoud the Full Court of the Family Court was required to consider whether
the trial Judge had failed to draw an inference against the wife when she had
not called her father and mother as witnesses in relation to money that they
all said her parents had loaned to her and which the husband thought had been a
gift.

The so called "rule in Jones and Dunkel" allows a Court to draw an inference
unfavourable to the party that failed to call the witness, such that the
evidence of the uncalled witness would not have assisted the party's case.

In Masoud and Masoud
the Full Court, accepting the rule, noted however that "it is important to
observe that the operation of the "rule" is not a substitute for
evidence".

In this case the wife had given evidence, in both an
affidavit and in person before the Court, as to the existence of a loan, as did
her father in an affidavit. That evidence was supported by a loan agreement
that had been produced to the Court. No evidence was either led by the husband
or elicited in cross-examination of the wife to cast doubt on the evidence of
the wife and her father.

In the particular circumstances of the case the Court found that the trial Judge had not fallen into error in not making an inference against the wife.

Monday, 4 July 2016

Among the many grounds of appeal the husband argued in the
recent case of Masoud and Masoud the
Full Court of the Family Court was required to consider whether the husband
failed to disclose certain financial documents, namely in relation to a family
trust that he was a discretionary beneficiary of.

The husband mentioned in his evidence that he was a
discretionary beneficiary of the trust, but did not produce any documents.
Under cross examination he said he had asked family members for the documents
but they refused to provide them to him.

Rule 13.01 of the Family
Law Rules 2004 imposes a general duty to give full and frank disclosure but
Rule 13.07 narrows the duty to "each document that is or has been in the
possession, or under the control of the party".

The Full Court referred to the case of Schweitzer & Schweitzer where it was said that a beneficiary of
a discretionary trust "is entitled to access to the financial documents of
the trustees only for the purpose of ascertaining that there is due
administration [of the trust]".

Therefore, the Full Court concluded, the documents could not
be said to be in the requisite possession or control of the husband.

Having succeeded on this ground of appeal (among others) the Full Court concluded that there was a flawed foundation for the trial judge's Orders. The matter will now be re-determined.

Monday, 13 June 2016

With
the introduction of the Family Law Act in 1975 the principal
of no-fault divorce was established in Australia.

This
means that when an Application for Divorce is made the Court does not consider why the marriage ended. The only
consideration is that the marriage has broken down irretrievably - there is no
reasonable likelihood of the parties reconciling their relationship.

How
does the Court determine that the marriage has broken down irretrievably? The
criteria used is that the parties have been separated for 12 months and one
day.

If
the Court is satisfied that the parties have been separated for 12 months and
one day the Application will be granted.

There
can sometimes be a dispute about the date of separation - and hence if the 12
months and one day has occurred - and it can be necessary for evidence to be
adduced to satisfy the Court of the date of separation.

Indeed, that the required 12 months and one day has not passed is one of only two grounds where an Application for Divorce can be opposed by the other party (the other is that the Court does not have jurisdiction). If a Response is filed refuting the date of separation the Court will consider the matter and determine if the Divorce Order will be made.

Sunday, 29 May 2016

The Family Law Courts
have a clear principle that a Court should only hear an application to vary an
earlier Order if it is satisfied that there is some changed circumstance which
would justify such a serious step. This is known as the "rule in Rice
and Aspland".

The rule in Rice
and Asplund applies whether the earlier orders were made by consent of
the parties or after a contested hearing before the Court.

The principle
underpinning the rule in Rice and Asplund is that there should
be an end to litigation, that is the avoidance of endless litigation between
parents examining again and again the same issues and arrangements.

However, there are
instances where it is necessary for a Court to revisit earlier Orders. While
there is no exhaustive list of what constitutes a changed circumstance in
previous cases this has included psychological and physical changes in the
child, evidence of violence towards the child, a parent's recovery from former
mental health issues, a proposed relocation by one parent and a parent's new
stable relationship or marriage.

Should one parent bring an application to revisit earlier Orders and a Court be satisfied that there is a changed circumstance than the matter is considered again by the Court and new Orders may be made.

Sunday, 8 May 2016

In December 2015 the Federal Parliament passed the Family Law Amendment (Arbitration and Other
Measures) Rule 2015. These
amendments to the Family Law Act are
in part in relation to how the Family Court is determine surrogacy proceedings,
and in particular the evidence that is required to presented to the Court in
such proceedings.

The amendments provide that evidence is to be adduced to the
Court from the applicants as their personal circumstances, from the birth
mother as to her personal circumstance and in particular whether she provided
informed consent and whether she received counselling and legal advice and evidence
is also required in relation to the identity of the child including in relation
to citizenship. A copy of any surrogacy agreement is also to be presented.

It is also necessary for evidence as to the relevant law in the child's country of birth to be provided to the Court.

Rose Laffan

The content on this site does not consitute legal advice and is for general information only. Readers must place no reliance whatsoever on the content of this site. The author, and Mullane & Lindsay Solicitors, accept no liability whatsoever arising as a result of reliance upon its content. If you require further information please contact me at Mullane & Lindsay Solicitors.